Bright v. Bacon & Sons, &C.

• Decision Date: 09 February 1909
• Citation: 131 Ky. 848
• Parties: Bright v. Bacon & Sons, &c.
• Court: Kentucky Court of Appeals

Page 848

131 Ky. 848

Bright v. Bacon & Sons, &c.

Court of Appeals of Kentucky.

February 9, 1909.

Appeal from Jefferson Circuit Court (Chancery Branch, First Division).

SHACKELFORD MILLER, Judge.

Injunction denied and plaintiff appeals — Affirmed.

HELM BRUCE for appellants.

ALBERT S. BRANDIES of counsel.

ROBERT C. KINKEAD for appellee.

OPINION OF THE COURT BY JUDGE O'REAR — Affirming.

The question for decision in this case is the right of one of the owners of a party wall to build upon it, so as to raise his house above the original height, without the consent of the other party. On the two lots owned, respectively, by Mrs. Bright and Miss Judge on Fourth street, in Louisville, were two houses, fronting upon the street. There was a wall between the houses which stood equally upon the two lots 6½ inches upon each. This wall supported each of the houses on that side, and was a party wall. The buildings were each three stories high. Miss Judge desired to build an additional story to her house, and to remodel it by building a practically new house. Negotiations for an agreement between the owners of the lots having failed, Miss Judge and her tenants tore down her old house, except they left the party wall intact, and built an additional 9-inch wall on her side against, and tied it to, the party wall till the top of the latter was reached, making a 22½-inch wall, and then extended the party wall the full thickness up another story. In doing the work no damage was done to Mrs. Bright's building. Nor was her use of it disturbed. Mrs. Bright sought an injunction restraining Miss Judge and Bacon & Sons, her tenants, from building the additional story so that any part of it would rest on her side of the party wall. The injunction was denied, and she has appealed.

The two houses were old buildings. There is no record of an agreement between the owners of the lots respecting the party wall. Nor is there any one who knows when the houses were built, or knows of any express agreement between the owners when they were built. All that is known is that the party wall stands equally upon the two lots, and that it has been so used by the respective owners and their grantors for time out of mind. Nor was it shown whether the two houses were built by the same person owning both lots. There is thus presented the naked question as to the legal rights of such owners in the common or party wall between their homes. There is no statute in this State regulating the rights of owners of adjoining urban lots who build adjoining houses upon them. Whatever rights the parties have in such walls depend upon the common law. Of course if there had been an express agreement embodied in a grant, the matter would be one of construction only; for the parties could limit or extend their rights in whatsoever way they could agree upon. In this State, under the common law, the right to use and the manner of use of a party wall depends upon one of two propositions: Either an agreement between adjoining owners, or prescription. The adjudged cases throughout the country, which are very numerous, are not uniform in their declaration of the common law upon this subject. It would be useless, if not an endless task, to attempt to analyze and harmonize them. We apprehend that not a little of the confusion arises out of the constricted announcement of the controlling principle in the earlier cases, and the efforts of the later courts to keep within the strict rule stated as a principle, while working out differentiations in its application upon the varying facts of the cases, or resting the judgments upon certain fictions, in the absence of anything better for support. We think the cases are really divisible into two great bodies: One where the right is purely prescriptive; the other where it is clearly the subject of agreement, express or implied. If two owners build a party wall for their common use, it is not accurate to say ever that their rights in the wall depend in any sense upon prescription. It is then a matter of agreement solely — agreement expressed or implied. We can lay to one side the subject of express agreement, as that is not here. It is not to be presumed that men build party walls, or that either one of them would build one-half, or any part, upon the adjoining lots, the walls designated to be used, and actually used, by each adjoining owner, without some kind of an understanding between them as to their respective rights in the wall. Without some understanding, if one alone so built the wall, he would be a trespasser to the extent that he encroached upon his neighbor's lot. If he was suffered to maintain his wall there for the period which sets up the statutes of limitation, his use and occupancy being hostile and exclusive, he would acquire title to the part of the other lot occupied by his wall, and the owner of such part would be barred of all his former title and the rights he had under it. But that would not be a party wall. It would be an individual wall. However, if the adjoining owner immediately or directly attached his house to the dividing wall, making it a part of his house, then the statutes of limitation would stop running, if they had begun, and the wall would become a party wall. The last owner by his act in adopting it as a party wall waived his right to sue in ejectment, and elected to treat the use and occupancy of his neighbor as amicable. In the latter event he would be, because he ought to be, estopped to deny that the wall thereafter stood as a party wall erected by agreement just as if the agreement had been entered into before a brick was laid in it. One may adopt a situation so as to make himself a party to it as efficaciously as if he had entered at the beginning. There is no state of case that we can imagine where one owner builds a wall astraddle of the dividing line between his and his neighbor's lot, designed to be a party wall for the buildings upon each lot, and which is accepted and adopted by the other party thereafter, where the doctrine of prescription can logically enter into the case. The matter then becomes always a question of agreement, express or implied. If express, its terms control. If not express, then it must be implied, like all other implied agreements that the parties mutually understood and assented that a fair equivalent was to be rendered by the one for the benefits conferred upon him by the other. What, then, is the implied agreement? It is, we think, that the wall shall be and remain a party wall for each of the lots; that its use shall be as a wall to each of the buildings, constituting a part of each building (Baugher v. Wilkins, 16 Md. 35, 77 Am. Dec. 279, and to act as a support to each building (Fleming v. Cohen, 186 Mass. 323, 71 N. E. 563, 104 Am. St. Rep. 572), and in the event either building falls into disrepair, or it is deemed expedient by its owners to remodel it (Heine v. Merrick, 41 La. Ann. 194, 5 South. 760, 6 South. 637) or reconstruct it (Beidler v. King, 209 Ill. 302, 70 N. E. 763, 101 Am. St. Rep. 246), he may do so, being careful not to injure the other building (Fleming v. Cohen, supra; Brooks v. Curtis, 50 N. Y. 689, 10 Am. Rep. 545), nor unnecessarily interfere with its use (Clemens v. Speed, 93 Ky. 284, 19 S. W. 660, 19 L. R. A. 240; Speed, 93 Ky. 284, 14 Ky. L. R. 625, 19 S. W. 660, 19 L. R. A. 240; Negus v. Becker, 143 N. Y. 303, 38 N. E. 290, 25 L. R. A. 667, 42 Am. St. Rep. 724). That much seems to be well settled.

The question of compensation to the one building the wall need not be noticed here, except incidentally. The apparent divergence in the authorities is as to the right of either, without the consent of the other, to add to the original use of the party wall. It must be remembered that we are dealing alone with what was the implied agreement originally. Now, as neither party to such an arrangement, after it was executed, could withdraw from it without the consent of the other (Henry v. Koch, 80 Ky. 391, 4 Ky. L. R. 282, 44 Am. Rep. 484), as to do so would be to annul an executed contract, he would be bound to let the other use the exact wall, if it was sufficient and safe for the purpose, to support the latter's building and constitute a wall to it. But it could not be presumed that the parties to the original convention ever contemplated yielding complete or qualified dominion over any part of their lots except as to the strip on which the party wall stood. It is not the manner of men to do so. The law will not presume a thing contrary to the custom of men. Then each party reserved, it must be presumed, the right to do with his lot, and the building on it, anything that would not impair the other's free use of the party wall as a party wall. Included in such reservation, or rather, included in the implied agreement of the parties, was the right of each to alter or reconstruct his building in any way he chose, so long as the other's use of the party wall was not impaired. If he had only a 1-story house on his lot to begin with, he could later build on it a 2-story house, or a 10-story house for that matter. He still owned his own lot, with all the rights of proprietorship. And he owned it up to his line, which is the middle of the dividing wall in this case. Ingals v. Plamondon, 75 Ill. 118. His neighbor, however, had an easement in so much of the former lot as was occupied by the party wall. What is that easement? It is to have the party wall maintained, with all its uses as a party wall, and no more. And the...